Roy M. Robbins, Our Landed Heritage: The Public Domain, 1776-1936 (1942).

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CHAPTER V
PREEMPTION: A FRONTIER TRIUMPH

In 1837, as in 1819, the American public tasted the bitter dregs of depression. Bankruptcy, unemployment and suffering were the order of the day. In the West wildcat banks crashed, internal improvement projects folded up, land speculation automatically ceased, and nine western states with their resources squandered contemplated repudiation. The era of infatuation, inflation, and folly had come to an abrupt end.

It is difficult to tell whether the state, the speculator, or the actual settler suffered most. At any rate, the individual in residence on the soil now had the advantage. Legislatures of many western states immediately put through laws providing for higher taxes on lands. This move hastened the process of liquidation, compelling many absentee landlords to sacrifice holdings, in some cases at prices below the government minimum. Bona fide settlers who had been unable to participate in the speculative years, at last found it advantageous, provided they had the money, to take up land. Laborers were no longer diverted from the field as they had been during die boom era. The lax spirit which had pervaded the West was now discountenanced, and the energies of the people quietly sank down into channels of substantial industry. With harder times, more accurate information on lands became current in contrast to the inaccurate glowing accounts of 1835-36. Everywhere conditions seemed more favorable to settlers than to speculative interests.

It had been contended that the Panic of 1837 stimulated migration to the West. With nine-tenths of the factories of the East closed, one might have expected that the armies of unemployed would heed Horace Greeley's advice to go West and take up land.¹ Many eastern newspaper editors expected, as Greeley did, that laborers would scatter to the West, and western editors naturally welcomed their coming.² But recent research bears out the belief that migration for the most part ceased with [73] the advent of the panic.³ Few people heeded Greeley's advice, for few had money for transportation and few knew very much about farming. Fewer still had the money to buy land after reaching the West.⁴ Extensive settlement was not again resumed until the middle 1840's. At that time settlers took up lower-priced lands offered by speculators before buying at government sales, and even then there was no wholesale migration of redundant population. It is true that cheap land acted as a safety-valve for the discontented but only during good times. In general, cheap land can be considered as an aid in balancing the economic order only if viewed over a long-time perspective.

It was, in fact, the failure of the "back to the land" panacea which led Greeley and others to consider other means of ameliorating the lot of the eastern poor and discontented. The movement to establish economic and social opportunities for the masses which began in Jackson's administration became almost a crusade following the Panic of 1837. Liberal thought that had been deemed radical, agrarian, socialistic, or communistic now found more favorable consideration. Workingmen's associations became more popular in the larger cities of the Atlantic coast. Much might be said of their impracticable and visionary character, but one thing is certain, that two terrible panics within one generation had convinced many that the economic order of the country was more unbalanced than in the earlier period of the Republic. The remedies that were offered were quite levelling in character, but it must be recognized that even so the socialistic and communistic movements in America stood in striking contrast to the extreme revolutionary character of the same movements in Europe. Most Americans were in fact homeowners, and the institution of cheap land really acted as a deterrent against the genuinely radical tendencies of the day. At any rate, one may soundly conclude that eastern conditions served to bring the agrarianism of the West into more favorable light.

Economic and social reform was in the air. Many felt that a system which permitted perpetual artificial fluctuations in values was utterly subversive to the best interests of the country and that steps should immediately be taken to steady the currency system and thus diminish the irresponsible control by private corporations. It was contended that [74] the speculative spirit was merely slumbering and that a reunion of Bank and State would waken it to renewed activity.⁵ Although it is beyond the scope of this study to deal with currency and banking reform, it is pertinent to consider the relation of the public lands problem to these other economic and social reforms. It was a conceded point that the reckless land speculations of 1835 and 1836 had been the cause as well as the center of the great convulsion of 1837. While banking and currency reform were essential to immediate reconstruction, nevertheless, further action was necessary to relieve the situation in the West. With widespread condemnation of the speculator, and with agrarian sentiment running rampant, the times were never more propitious for the securing of the public lands to actual settlers.

The Panic of 1837, instead of dampening the ardent spirits of the various protagonists on the land question, served to intensify sectional desires to bring about an immediate change. Benton again introduced his graduation bill, but it failed to make much headway against the determined opposition of Henry Clay who argued that it would bring on another decline in land values just as liquidation was supposed to have reached the bottom.⁶ Calhoun found a more favorable reception for his cession plan which, modified slightly from previous bills, now provided that the federal government should receive approximately 12.5 per cent of the proceeds, the federal land laws should remain unchanged, no state should be allowed to cheapen its land without consent of Congress, and that books should be kept by the state authorities for federal inspection.⁷ But even this bill was tabled in the Senate.

With the failure of the cherished plans of Calhoun and Benton the way was now cleared for consideration of preemption. On January 25, 1838, Senator Robert Walker of Mississippi again presented the bill which had been tabled in the House in 1837.⁸ This bill, considerably modified, received unexpected support in the Senate where much of the debate was confined to technicalities and details.⁹ Petitions had been pouring in upon Congress from state legislatures and from private citizens asking for relief in the form of indulgences for those who in [75] spite of the collapse of speculation still feared the auction.¹⁰ As one memorial declared: "If the lands are brought into the market this summer, a large portion of the settlers ... who have spent two years of trial and hardship together with large sums of money in improving their lands would be wholly unable to purchase them even at the minimum price.... [The national debt has] been discharged, and the great effort for the last few years has been to diminish rather than increase the sources of the public revenue."¹¹ Credit and extensions had been granted upon customhouse bonds, and the banks throughout the country had been permitted to suspend specie payments without impunity, hence it was reasonable that some consideration should be given the actual settler. And the backers of the preemption measure received added prestige when President Van Buren who was interested in the eastern laborer as well as in the western settler took a decided stand in its favor.¹²

Henry Clay almost alone poured forth bitter invective on Walker's bill. He denounced the squatters on the public domain as "lawless rabble" and claimed that they might as well seize upon the forts, the arsenals, and the public treasure as to rush out and seize on the public lands.¹³ "The whole preemption system," he declared, "is a violation of all law, and an encouragement to persons to go on the public lands and take the choicest portion of them."¹⁴ The congressional debate was "nothing more than a struggle between those who would violate the law and those who would maintain its supremacy."¹⁵ He saw preemption as a reward for the violation of the law. The editor of the 'New Yor^ Courier and Enquirer observed that "the bold and manly, and patriotic stand which Mr. Clay has taken in this debate will probably injure him politically in the Western and Southern States. Will it give him friends in any quarter of the country ? It may not, but it ought to rally around him those men who honestly wish to preserve the national domain from the plunder of a lawless band of squatters."¹⁶

The same newspaper spoke of the preemption law as one "granting bounties to squatters engaged in cheating the government out of the [76] best tracts of public lands." As for Van Buren and Benton, the editor continued with the assertion that they were "vying with each other for Western popularity" which was "to be purchased if they or either of them" could "accomplish their views with the public lands." They apparently believed "this property" was "ample to satisfy the most craving among the mercenary," and it was "therefore to be squandered away in a profligate manner upon the unprincipled speculator or worthless squatter, and woe betide him who attempts to arrest their career." From Horace Greeley, came the observation that the bill seemed "calculated to set our western people hunting after sudden fortunes in making a claim upon some choice tract of land -- so as to buy for a hundred dollars what may be worth five or ten thousand -- instead of striving to improve their circumstances by regular and patient industry. It looks like a premium on thriftlessness and gambling adventure."¹⁷

So important had the problem become that the House of Representatives took up a bill similar to the Walker preemption bill and passed it on June 14.¹⁸ The Senate dropped the Walker bill and concurred in the House bill. It was a sweeping Democratic victory, and carried along some of the western Whigs.¹⁹

By the Act of June 22,1838, every settler of the public lands who was the head of a family or over twenty-one years of age, and who was in personal residence thereon at the time of the passage of the act and four months next preceding, was entitled to all the benefits of the privileges granted in the preemption act of 1830.²⁰ In other words, the Act of 1830 was practically revived and was to continue in operation for two years. However, the preemption-floats allowed in the previous acts were now outlawed, and wherever two persons were found settled on the same quarter section, the land was to be divided between them. Furthermore, an ironclad oath was to be taken by every claimant that he had entered upon the land "in his own right, and exclusively for his own use and benefit," and that he had not "directly or indirectly made any agreement or contract in any way or manner with any person whatever by which the title which he might acquire from the government should inure to the use or benefit of anyone except himself, [77] or to convey or transfer the said land or title to any other person whatever at any subsequent time." This oath was a security against speculation.

No sooner had this act providing for retrospective preemption been passed than western interests began working for the enactment of a measure incorporating the preemption principle permanently into the land system. This new bill, introduced in the House in 1839, was the natural culmination of the series of acts of temporary and remedial character which began in 1830. Never were the times more favorable to the passage of such an agrarian measure. Notwithstanding the anxiety of western members for its passage, however, the measure was not acted upon, due to the absorbing character of the currency problem.²¹

In 1840 a renewal of the Act of 1838 was easily secured by which the operation of preemption was continued down to June 22, 1842.²² Undoubtedly, the preemption issue had become the most important land issue of the day, and one which rightly demanded a stand from both major parties in the ensuing presidential campaign. President Van Buren, and in fact the whole Democratic party, was now working openly in favor of the principle. Prominent partisan periodicals were printing full discussions of the pro and con of the subject.²³ Governor David Campbell of Virginia, speaking on the land problem in general, declared: "I know of no matter in regard to which this Commonwealth has, and ought to feel a deeper interest." From Connecticut came the desire to accept the challenge from the West.²⁴ Again it appeared that the East was lining up the advocates of Clay's distribution plan to block the preemption crusade from the West.

As the campaign of 1840 approached it was obvious that the West was destined to play a leading role. Calhoun in 1838, pointing to the belief that after the census of 1840 the West would command five-twelfths of the votes in the electoral college, predicted that the presidential candidate who catered to the West would secure the election of 1840.²⁵ [78]

From all over the country there burst forth unbounded praise of the Valley of the Mississippi. The following excerpt is typical: "That the glorious West of ours is destined ere long to become the seat of population and wealth, with their natural accompaniments of literature, art, and science, before which the pride of our past and present superiority must soon be forced to bow, we know full well; and hailing the approach of that day, we would speed the course of time that is to bring it around."²⁶ And from a periodical devoted primarily to economics and business rather than to politics came the f arsighted observation: "Should the country arrive at that period when these [western] products are exported abroad, the eastern cities must be the depots of shipment for the produce of the west to foreign markets, as they now are and long will be the distributors into the interior of all important foreign goods. The arteries of western commerce will circulate the life-blood to the heart of our commercial metropolis. Every pulsation of that heart is felt to the remotest borders of the west."²⁷ Undoubtedly, political and economic observations of this type focussed public attention on potential resources of the West.

But the West of 1840 desired more than empty words. It was already convinced of its greatness, and it was far more concerned about its present situation. With the states of Ohio, Indiana, Illinois, Michigan, Arkansas, and Louisiana practically bankrupt, the West was interested in remedial legislation. Indiana was the only Whig state among the bankrupts. Hence while the Democrats were lining up in favor of preemption, the Whigs proposed the assumption of state debts, hoping to gain the support of the bankrupt Democratic states.²⁸ This proposal brought forth considerable protest from the East. When the Whigs nominated Harrison of Ohio, the East in return for its support of a western candidate, received an agreement to hush up all the talk on assumption. Clay, who many thought would secure the Whig nomination, was seemingly appeased by the agreement to support his distribution plan. The decision to have no platform relieved many Whigs of embarrassment.

The Whigs were immediately set upon by the western Democrats who had heard with their own ears the Whig overtures regarding [79] assumption, but the Whigs now denied that anything had been said on the subject.²⁹ When Benton, in December 1839, introduced into the Senate certain resolutions declaring against assumption, his real if unannounced motive was to bring the Whig position on that subject out into the open.³⁰ The nervous Whigs tried unsuccessfully to table the resolutions. Calhoun asserted that they had dropped the idea for fear that it would mean a higher tariff which would be unpopular among the southern Whigs.³¹ But Benton's resolutions, instead of smoking out the Whigs on assumption, brought them more clearly in line with distribution. On February 10, 1840, Senator Crittenden of Kentucky brought forward resolutions on distribution. Benton's action had thus "aroused the South against the passage of assumption, had endeavored to reveal the Whigs in their true light to be settlers of the West, and had weakened their appeal to the moneyed class for support in the ensuing presidential campaign."³²

While Benton was embarrassing the Whigs, Calhoun introduced his cession bill, a move which drew fire from the Whigs who charged Calhoun with making overtures to the West.³³ Before the session was over, the Democrats had pushed through a preemption act which renewed the Act of 1838. The forces were now aligned for the presidential campaign.

The Democrats nominated Van Buren and came out openly in favor of preemption and distribution. The Whigs, having no platform, talked of the prowess of their candidate Harrison, the hero of the West, the author of the Land Act of 1800, the victor at the Battle of Tippecanoe and at the Thames. Of course he favored the West! They appealed to the West, but they made no definite promises. Their enthusiasm for log cabins and hard cider was after all a sort of protective coloring. While Harrison reminded a Dayton, Ohio, audience in September 1840 that he had been a Democrat in 1800 and "had devised a bill which had for its object to snatch from the grasp of speculation all this glorious country which now teems with harvests under the hands of honest, industrious, and virtuous husbandmen," yet in the East Whig organizations resolved in favor of distribution.³⁴ The Whigs won the election, making extensive gains in the older West but failing to carry the newer states which had given unqualified support to [80] preemption -- Illinois, Missouri, Arkansas, and the Territory of Iowa.³⁵ An analysis made a few years later explains the Whig victory: "No one fact of circumstance had so powerful a control over the minds of the great masses in the Mississippi Valley in winning their affections to General Harrison as that he had been a pioneer himself, a settler, in the western sense of that term, had lived in his log cabin, and had favored all the laws which had tended to the protection and security of the squatter. Here was the consideration which threw confusion into the ranks of the Democratic party. This was the lever by which the Whig party raised themselves from a hopeless minority into an unexpected and triumphant majority. The supposed sympathy of General Harrison, and the reputed aversion of Van Buren for the poor man, for the humble citizen, is the true secret of the great and tremendous political revolution of 1840."³⁶

The convening of the lame duck Congress in December 1840 commanded the attention of the country. No one section of the country had control of the national legislature, but in view of the courting of the West by both parties during the campaign it was expected that this section by playing its cards carefully, might now gain a complete victory over the conservative East. The ensuing congressional struggle was one of the most bitter and one of the most violent in the history of the land question -- the culmination of over twenty years of sectionalism. Evidence of the importance of the land issue is found in the statement made by John C. Calhoun on January 12, 1841: "I regard the question of public lands, next to that of the currency, the most dangerous and difficult of all which demand the attention of the country and government at this important juncture of our affairs." At the same time Senator Ambrose H. Sevier from the frontier state of Arkansas was insistent that the West considered it the most important question of the day.³⁷ When Congress met in December, Clay, interpreting the Whig presidential victory to mean the approval of his cherished distribution plan, soon introduced into the Senate a resolution calling for information on public land receipts since the year 1828.³⁸ But Benton rose to the occasion to demand a showdown on the friendship which the Whigs [81] had pledged to the West in the course of the campaign. The introduction on December 14, of his so-called log cabin bill providing for permanent, prospective preemption took the Whigs quite unawares.³⁹ Jackson, still in touch with politics, declared that Benton's move was an excellent one because it placed "Clay in a position that he must vote for the bill, or expose his hypocrisy. . . . The battle" was now on "between the log cabins and the palaces." Jackson had "no doubt when the vote" was taken on Colonel Benton's bill, that Clay would "forsake the Cabin Boys and betake himself to the palaces."⁴⁰

On January 4, 1841, the log cabin bill was reported from the Public Lands Committee by Senator Clement C. Clay of Alabama. Clay asserted that the settlers of the West were living in an era of good feeling, that during the campaign they had been the constant theme of praise. He showed that there would be no sacrifice of pecuniary interest worthy of consideration if permanent, prospective, preemption were adopted. He very ably presented evidence to the effect that the average return from the sale of land varied only from $1.26 per acre in 1828 to $1.31 in 1834. In 1836, the year of the largest sales in land history, the price averaged scarcely more than $1.25 per acre. If the expense of the auctions were taken into consideration, the average return per acre was probably considerably less than the established minimum. "Was not the question distinctly presented," asked the Senator, "whether the government was to sell the public domain in small quantities to men of small capital, who would immediately occupy, improve, and render it productive, or whether it was better policy to sell [land] at auction to bands of speculators and capitalists in large quantities, to lie idle and unprofitable till they could extort the desired profit from those whose necessities compel them to have it?"⁴¹

On the same day, January 4, Benton explained further his log cabin bill, and expressed the desire that graduation might be linked with preemption, since both ideas were being considered by the President and Secretary of the Treasury as revenue measures. He saw no reason why the bill should not meet the approval of all sides of the Senate, particularly the anti-Democratic side which was calling out for new taxes to defray the current expenses of the government and to retire the new national debt.⁴² [82]

When Senator W. P. Mangum of North Carolina moved an amendment limiting the preemption to citizens of the United States, a tense situation appeared. Clay of Alabama contended that the privileges of the temporary preemption laws had all been open to aliens, but Clay of Kentucky visualized an exodus of the peoples of Europe to America, who might in a short time take up the remainder of the public domain and establish alien governments. The amendment to exclude aliens was rejected by vote of 30 to 12, the Whigs almost to a man voting in favor of alien exclusion.

Senator John J. Crittenden of Kentucky then proposed limiting preemption to persons possessing less than $500 in wealth. The aim of this proposal was to keep the wealth of the East intact and to put a damper on emigration. But this Whig proposal was voted down 26 to 14,⁴³ although by doing so, Clay contended, they gave their opinion "in favor of admitting the barons and millionaires and nabobs upon an equality with poor men."⁴⁴ On January 6, Senator S. S. Prentiss of Vermont, who had opposed all preemption measures heretofore, moved to substitute for the whole measure another extension of the Act of 1840. And on the same day Senator Jabez Huntington of Connecticut made a biting denunciation of the whole preemption system.⁴⁵

It is clear that almost from the outset the struggle settled down to a strict party contest. The Whig position indicated that their praise of the West in the campaign of 1840 was largely camouflage. Jackson's prophecy was realized. Failing to block the log cabin bill by these flanking operations, the Whigs now shifted their tactics. On January n, Crittenden moved to amend the measure to provide for distribution of the proceeds from the sales of public lands. Crittenden declared he could accept the log cabin bill, provided the Democrats would vote for distribution.⁴⁶ This was the first indication of the strategy that the Whigs ultimately adopted: to attach distribution as a rider to the log cabin bill. But at the moment Whig strategy only served to confuse the whole situation, for in order to counteract the distribution amendment Calhoun on January 12 moved an amendment to provide for the cession of the public lands to the states in which the lands were located. Thus instead of having a clear-cut discussion of preemption, the struggle over the log cabin bill resolved itself into a sectional combat with each section putting forward its own cherished solution of the problem. [83]

Debates waxed hot throughout the rest of the month with Benton of Missouri standing up against fire from all sections. Within a single day, January 18, the Senate voted down all the amendments to the log cabin bill, and it appeared that the bill would now have clear sailing. But not so, the Senate still wrangled over the amendments that it had killed -- which Benton dubbed unparliamentary tactics -- and finally Webster was brought into the arena to hold back preemption in favor of distribution.⁴⁷

The Whig offensive was applauded by Horace Greeley, editor of the official Whig newspaper, The Log Cabin, who declared that every member who had opposed distribution was a Van Buren man. Regarding the lame duck Democrats of the eastern states, he charged: "They know that their votes do gross wrong to their several States -- they have been told by their legislatures and the popular votes of their constituents that the Bentonian policy with regard to the Public Lands is as execrable to their judgement, as [it is] ruinous to their prosperity -- and yet they heap the full measure of their iniquities by voting on every point directly in defiance of their constitutents."

On the subject of preemption and graduation Greeley voiced the Whig opposition perhaps as adequately as did Clay, Crittenden, or Webster. "The direct object and effect of the Locofoco propositions now pending before the Senate is the spoliation of the Old States.. . . [The] thriftless, industry-hating adventurer who shall first pounce upon a section at the junction of two rivers, or at a head of navigation, or in the midst of valuable timber -- worth probably fifty to five hundred dollars an acre before his foot touched it -- shall be entitled to purchase it whenever he gets ready at a dollar and a quarter an acre. What justice, what policy, can there be in this ? . . . The triumph of the preemption and graduation schemes must be the death warrant of the rights of the Old States and the Union... . We feel and know," he continued, "that the triumph of preemption and graduation will rob the Old States of an incalculable property, at the same time that it will debauch and demoralize the New, plunging the whole country into another whirlpool of delirious speculation like that from which it has just emerged. ... The West will be overrun by squatters, its choice locations secured for next to nothing and its best timber destroyed, leaving the residue [84] comparatively worthless. At length, when the price has run down to twenty-five cents, rich speculators will monopolize the land by counties, and the next generation will become their tenants and vassals. Such are the deplorable results toward which Locofocoism is now driving the country."⁴⁸

When the month of January passed, and it looked as though the log cabin bill would come to a vote, the Whigs again produced a series of amendments undoubtedly intended to obstruct its passage. In turn, cession and distribution were again voted upon and defeated. On February 2 the bill itself was forced to a vote and passed by 31 to 19, fourteen Whigs and five Democrats from the Atlantic Coast states voting against it.⁴⁹ Almost every division taken on the land question in the course of the month had been on a strictly party basis. Upon the passage of the bill the official Whig newspaper commentator, Horace Greeley, declared: "We acknowledge that preemption to a great extent will be the law of new sections whatever may be the law of Congress, and that there is a seeming cogency in [preemption] . . . better legalized and regulated than fruitlessly forbidden. . . . But there is consolation yet. The bill of iniquities cannot probably get through the House at the present session. . . . Then the next Congress will pass a distribution bill; and it will be easier for a caravan of camels to go through the eye of a needle than for such a bill as Benton's to pass that body."⁵⁰

The Republican Journal of Belfast, Maine, asserted that the land problem had become the leading issue of the day, that it was now "a struggle between Aristocracy and Democracy. . . . The Democracy have contended for the rights of the poor man ... to settle upon and improve a portion of the public domain." This log cabin bill was "emphatically a bill for the good of the many," and was "founded on sound democratic principles; but Clay, Webster, and other federalists," had "battled with all their might against the bill and its very principles."

The editor further contended that the lands yielded a revenue of some millions annually which went to aid in the support of the government, thus lightening the burdens of the people. If the federal distribution measure should take effect, the revenue of the government would be diminished, the proceeds being distributed to the individual states to be disposed of as they saw fit. This deficiency in the national [85] revenue would have to be supplied by imposing duties upon goods imported, or by direct taxation upon the people. The latter course would not be submitted to and a protective tariff was the only alternative. The editor believed that "the working man, bad as his condition may be, can yet be worse off. He sees now the West ready to receive him, and give him shelter from northern oppression; he can buy a good farm under the preemption bill at a reasonable price. He has no guarantee that under the distribution scheme, the avarice of the old states will not raise the price so high as to prohibit him from buying. Moreover, the whole northern legislature is so much in the hands of capitalists, it will be the intent of the laws to keep the people at home, by lessening the prospects of emigrants; the more laborers there are, the lower is the price of labor, and the more means are wielded by rich employers to crush any insubordination among the employed.

"The distribution scheme," he concluded, "like that of a national bank, is unconstitutional. . . . The lands were originally ceded to the government by the old States, -- they cannot demand them back without some violation of compact."⁵¹

To return to Congress, the Whigs had not been successful in preventing the passage of the log cabin bill, but they had so delayed its passage that it was doubtful whether it could be pushed through the lower chamber. In the House, the Whigs had been able to prevent any such measure from being considered. A resolution introduced on December 24 by John Reynolds of Illinois had proposed instructions for a preemption bill, but William Johnson of Maryland had immediately amended the measure to include provision for distribution. Not until March 3 was the motion made in the House to suspend the rules in order to take up the Senate log cabin bill. Edward Everett of Vermont moved a call of the House, but the members, anxious to go home, refused to allow the bill to be considered.⁵² Thus faded the hopes of the Van Buren Democrats to gain a clear-cut victory on preemption.

The Whig victory at the election of 1840 produced in the new Senate a Whig majority of seven, and in the lower house a Whig majority of forty-four. With such a composition Clay of Kentucky was anxious for a special session, and Harrison, influenced by a party caucus, agreed. [86] But before Congress convened the death of Harrison jeopardized Clay's plans. Tyler, who succeeded to the presidency, was a strict con-structionist, an antiprotectionist, and was opposed to a national bank. In his message to Congress he declared in favor of distribution "provided such distribution does not force upon Congress the necessity of imposing upon commerce heavier burthens than those contemplated by the act of 1833."⁵³ From the southern Whig press came unqualified approval. In fact, Tyler was skeptical of Clay's plans and even seemed inclined to support preemption.⁵⁴

Clay decided, nevertheless, to gain sufficient votes among the western Democrats to compensate for the loss of some of the southern Whigs who feared a rise in the tariff. To accomplish this he proposed to combine distribution and preemption in one bill. It will be recalled that Senator Crittenden, Clay's colleague, had promised the West in January that Clay's Whig following would agree to preemption if the frontier would support distribution.⁵⁵ Hence, without the backing of the frontier interests, a combined distribution-preemption bill was introduced in the House on June 24.⁵⁶ For the next few days the House debated distribution and some members, disgusted with this turn of events, demanded that the purpose of the special session be redefined.⁵⁷ Political grievances appeared to be the order of the day, and Clay seemed determined to ride roughshod over bodi the Chief Executive and the Democratic minority.⁵⁸ The Democrats, at first taken by surprise, rallied strongly against the bill, for they knew that in practice distribution would nullify preemption.⁵⁹

Finally on July 6 the debate in the House reached its climax. Over one hundred amendments were introduced to delay its passage. After ten hours of debate, the House was only warming up to its highest pitch. While the forensic battle raged within, a terrific thunderstorm raged without seemingly keeping time and tune with the unruly chamber. The last stages of the struggle were aptly described by an eye-witness: [87]

"The noise was now so great, and so many members were addressing the chair at once, that it seemed as if 'chaos were come again.' .. . The chair exerted itself to the utmost to restore order, but in vain. The uproar continued, while the rain fell, and the thunder rolled in terrific peals, and the blue lightning glaring at intervals through the hall, appeared to be mocking the storm that raged within. . . . The House having been in session for ten hours, a proposition was made that adjournment take place.... This was rejected by the majority. So amidst a terrific storm of thunder and lightning and rain, which at intervals rendered voices inaudible, the bill was forced ahead."⁶⁰

After the storm had cleared away it was found that the distribution-preemption bill had passed by the close vote of 116 to io8.⁶¹ In commenting on the passage in the House, Horace Greeley declared: "The Whig phalanx was compelled at last to resort to a bayonet charge, and they did the work gallantly." As to the compromise character of the bill, he believed "The people of the New States have an immediate, present, tangible interest in getting the public lands for little or nothing. The interest of the Old States in resisting them is equally strong, but unhappily less direct and immediate. One-half our people know and care nothing about it. But the passage of the land bill will remedy this, making the interest of the Old States equally palpable with that of the new. As a measure of precaution and security, therefore, this bill is invaluable."⁶²

In the Senate the bill met with even greater opposition. It had been introduced on June 10.⁶³ On June 14, Robert J. Walker of Mississippi moved a strategic amendment providing that distribution should be discontinued if the tariff should be raised above the 20 per cent level.⁶⁴ The Senate, awaiting action by the House, did not seriously consider the bill until August 11. On that day Senator Richard M. Young of Illinois proposed that graduation be included in the bill, but the Whigs rejected this amendment by vote of 27 to 18. Young then offered another amendment to authorize the States to tax the land from the date of purchase from the government but this was also defeated, by vote of 22 to 18.⁶⁵

After their failure to add any amendments to the bill, the Democrats resorted to logrolling. Mississippi was demanding that the Senate pass the bankruptcy bill. Clay agreed to act on that bill provided the advocates [88] of the bankruptcy bill would vote for his bill, but this plan was refused. On August 18 an attempt was made to table the bill. Time was flying, and the Whigs found that even their much-desired revenue bill which had passed the House was being held up pending action on the land bill.⁶⁶ The Tyler Whigs now insisted that it would be necessary to borrow or tax in order to distribute. Hence, at last, Clay was forced to accept Walker's amendment of an earlier date which provided that if the tariff were raised above the 20 per cent level then distribution should cease. This amendment was later to prove the undoing of distribution. As Professor Wellington put it, "it took the kernel out of the bill." Had Clay not agreed to this amendment, his bill would probably have been vetoed by Tyler.⁶⁷

On August 26 the Democrats made their last stand. Senator Benton moved to recommit the bill with instructions to strike out that part relating to distribution and instead insert graduation. His motion was lost by vote of 22 to 18. The vote on the original bill was then taken, and it was passed 25 to 18, only one Whig voting against it.⁶⁸ On August 30 the House and Senate worked over the details, concurring on the main points. The combined distribution-preemption bill was signed by President Tyler on September 4, 1841.⁶⁹

Viewing the whole history of Clay's bill the summary made by Professor Hibbard seems apt: "It was a case of the progressives against the standpatters, and finally the standpatters voted the progressive program through in order to carry their own."⁷⁰ Greeley, with his eyes on the distribution part of the bill, declared that in its ultimate consequences this bill was "of greater importance and value than any other measure" which had been before Congress that session.⁷¹ More to the point, the debates and votes indicate that it was not a sectional measure; it was strictly a party triumph, all to the credit of Henry Clay. Yet the great victory was to be short-lived; the anti-tariff amendment forced through by the southern Whigs was to prove its undoing and to give the triumph after all to frontier America. [89]

The distribution sections of the act provided for an outright donation of 500,000 acres to each new state for the construction of internal improvements and an apportionment of 10 per cent of the proceeds from the sales of public lands, but said apportionment was to be repealed in case the tariff should be raised above the 20 per cent level. In August 1842, both houses passed a tariff measure raising the dudes above this level. In fact, the bill specifically repealed the distribution provisions of the Act of 1841.⁷² The truth is that with financial stringency there had been little money to distribute. The total sum paid out amounted to only $691,000, a case of "much cry and little wool."⁷³ Many of the states including New Hampshire, South Carolina, Illinois, and Alabama, in disgust refused outright their shares of the distribution, looking upon the measure as a bribe. The Governor of Maine declared that "the policy of distribution is fully repudiated by both government and people."⁷⁴

Clay and other Whig advocates reluctantly yielded to the repeal of the principle, fearing that they were signing the death warrant of the public domain.⁷⁵ During the next two decades the principle was to be introduced again and again in Congress, but for practical purposes it received its last rites in 1842. Only the preemption portion of the act remained to carry on the memory of the bitter fight of 1841. Thus by an abrupt turn of events, the frontier interests at last triumphed.

The preemption provisions of the Act of 1841 repudiated the retrospective policy of preemption and recognized that settlement prior to purchase was no longer per se a trespass. The act provided that an individual, henceforth, could legally venture forth upon public surveyed land and stake a claim to the exclusion of all others.⁷⁶ The maximum amount that a settler could purchase was 160 acres, to be paid for at the government minimum price of $1.25 per acre. Exception was made in the case of the government's alternate sections of land grants to railroads, canals, etc., which could be preempted at $2.50 per acre. Any person was eligible for preemption who could comply with the following conditions: The individual must be the head of a family (any age), a widow, or a single man over the age of twenty-one; the person must [90] be a citizen of the United States, or have filed a declaration of intention to become a citizen.⁷⁷ Also the settler must not be the proprietor of 320 acres or more of land in any state or territory; and he must not quit or abandon his residence on his land to reside on the public land in the same state or territory. Lands included in any reservation, school lands, certain Indian lands, lands already granted to railroads, canals, or other public improvements, land included in the limits of any incorporated town, land already selected for townsites, certain lands set aside for trade or agricultural purposes, and mineral and saline lands were not open to preemption.

Frontier interests "accepted the law as a concession wrung from a reluctant Congress whose sympathy for the West was far from cordial."⁷⁸ They never forgave Henry Clay for stealing Benton's thunder. For the last twenty years Clay had consistently sided with the Atlantic Coast in its condemnation of the frontier. Knowing him to be the author of the hated principle of distribution, they believed him insincere in his attempt to reconcile such diametrically opposed principles as distribution and preemption. They called him "the worst enemy of the squatter." An Arkansas newspaper in 1844 said that he had done all in his power "to oppress the poor and hardy settlers upon the public lands, striving to place them in the merciless hands of speculators, and proposing to send a military force against them and force them out of their hard-earned homes at the point of the bayonet."⁷⁹

In reciprocal manner, the East had no love to spare for the belated preemption victory. Horace Greeley -- later one of the outstanding advocates of homesteading -- professing a true interest in the West, declared: "We detest the whole business [preemption], believing that nothing has wrought so fearful a woe to the industry, morals, and prosperity of the West."⁸⁰ When the Milwaukee Sentinel and Herald answered this challenge, Greeley retorted: "The Milwaukee editor well knows that we have done more to commend the natural advantages of Wisconsin and direct the attention of our eastern people than any editor east of Buffalo. But while ever advising our friends to emigrate westward [91] privately as well as publicly, we have uniformly counselled them not to wander beyond the bounds of civilization -- to stop off this side of the jumping-off-place, select land that is surveyed and pay for it." And later he added: "We said then, what we repeat, that the preemption system, with its facility of trespassing on the public lands, is a curse to the West and to the whole country."⁸¹

The historian may well conclude that the Preemption Act of 1841 marked the end of the old conservative land policy established in 1785. This new policy in general recognized four important principles: first, it was evident that Congress at last regarded the settlement of the public domain as more desirable than the revenue that might be obtained from it; second, that Congress intended that the domain should not fall into the hands of those who already had enough land; third, that the domain should be settled in small farms so as to extend the blessing of cheap land to the largest number; and fourth, that settlers should be protected from all intrusion and allowed a reasonable time to earn or gather together a sum sufficient to buy the land. It was at last intended that the actual settler be placed on an equal basis with the speculator in competition for land.

While the Preemption Act of 1841 served as a remedial measure in the reconstruction period following the great Panic of 1837, nevertheless, its enduring effects gave evidence that it was something more than a temporary panacea. Some contemporary observers went so far as to predict that it would serve as a deterrent against speculation. Indeed, it was the most important agrarian measure ever passed by Congress.⁸² It was a victory of pioneer America over the more established eastern order of society.⁸³ It was the capstone in the democratization of the public land system. The fundamental truth of Jefferson's prophecy made in 1776 in reference to frontiersmen, namely, that "they will settle the lands in spite of everybody," had at last been realized.